UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

_________________________________

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v.

NELSON ALAS, 

 Defendant - Appellant.

No. 22-7049

(D.C. Nos. 6:19-CV-00219-RAW & 

6:17-CR-00049-RAW-2)

(E.D. Okla.)

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ORDER DENYING CERTIFICATE OF APPEALABILITY*

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Before McHUGH, MURPHY, and CARSON, Circuit Judges.

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This matter is before the court on Nelson Alas’s pro se request for a 

certificate of appealability (“COA”). He seeks a COA so he can appeal the 

denial of his 28 U.S.C. § 2255 motion. See 28 U.S.C. § 2253(c)(1)(B) 

(providing no appeal is allowed from a “final order in a proceeding under 

section 2255” unless the movant first obtains a COA). Because he has not 

“made a substantial showing of the denial of a constitutional right,” id.

* This order and judgment is not binding precedent, except under the doctrines 

of law of the case, res judicata, and collateral estoppel. It may be cited, however, for 

its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

FILED

United States Court of Appeals

Tenth Circuit

March 3, 2023

Christopher M. Wolpert

Clerk of Court

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§ 2253(c)(2), this court denies his request for a COA and dismisses this 

appeal.1

Alas pleaded guilty to a single count of conspiracy to possess with 

intent to distribute large quantities of methamphetamine. See 21 U.S.C. 

§§ 841, 846. In exchange for Alas’s guilty plea, the government dismissed 

numerous additional substantive counts and a count seeking forfeiture of 

assets derived from the conspiracy. The district court imposed a sentence of 

135 months’ imprisonment, a term at the bottom of the advisory range set 

out in the Sentencing Guidelines. Thereafter, Alas filed the instant § 2255 

motion, asserting the government breached the plea agreement by failing to 

adequately make the district court aware, by the time of sentencing, of any 

assistance Alas provided “in any ongoing investigation into criminal activity 

within the Eastern District of Oklahoma and elsewhere, or in the prosecution 

1 The government has filed a motion to dismiss this appeal as untimely. 

As the basis for that motion, the government asserts Alas was obligated to file 

his notice of appeal within fourteen days of the entry of the judgment. See

Gov’t Motion at 3 (citing Fed. R. App. P. 4(b)(1)(a)(i)). In a proceeding under 

§ 2255, however, the notice of appeal must be filed within sixty days of entry 

of the judgment. 28 U.S.C. § 2107(b)(1); Fed. R. App. P. 4(a)(1)(B). This is 

true because proceedings under § 2255 are civil in nature and involve the 

United States and/or one its officers or employees sued in an official capacity. 

United States v. Williams, 790 F.3d 1059, 1077 n. 14 (10th Cir. 2015); United 

States v. Cruz, 774 F.3d 1278, 1284 (10th Cir. 2014); United States v. Pinto, 1 

F.3d 1069, 1070 (10th Cir. 1993). Alas filed his notice of appeal within the 

sixty-day window and his appeal is, therefore, timely. Accordingly, the 

government’s motion to dismiss the appeal as untimely is DENIED.

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of another person who has committed a criminal offense.” He also raised 

two overarching claims of ineffective assistance of counsel.

The district court denied Alas’s request for collateral relief. As to 

Alas’s claim the government breached the plea agreement, the district court 

found it had, in fact, been made aware of Alas’s cooperation and that the 

matter had been vetted at the sentencing hearing. Furthermore, the district 

court concluded it was well-aware of its authority to vary or depart sua 

sponte based on any such cooperation and that the record demonstrated Alas 

was not entitled to such relief. As to Alas’s claims of ineffective assistance, 

the district court concluded they were inconsistent with facts and the record 

and, more importantly, at odds with “solemn declarations” Alas made “in 

open court” during the plea colloquy. See Blackledge v. Allison, 431 U.S. 

63, 74 (1977) (“Solemn declarations in open court carry a strong 

presumption of verity. The subsequent presentation of conclusory 

allegations unsupported by specifics is subject to summary dismissal, as are 

contentions that in the face of the record are wholly incredible.”).

Alas seeks a COA so he can appeal the district court’s denial of his 

§ 2255 motion. The granting of a COA is a jurisdictional prerequisite to an 

appeal from the denial of a § 2255 motion. Miller-El v. Cockrell, 537 U.S. 

322, 335–36 (2003). To be entitled to a COA, Alas must make “a 

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substantial showing of the denial of a constitutional right.” 28 U.S.C. 

§ 2253(c)(2). To make the requisite showing, he must demonstrate 

“reasonable jurists could debate whether (or, for that matter, agree that) the 

petition should have been resolved in a different manner or that the issues 

presented were adequate to deserve encouragement to proceed further.” 

Miller-El, 537 U.S. at 336 (quotations omitted). In evaluating whether he 

has satisfied this burden, we undertake “a preliminary, though not 

definitive, consideration of the [legal] framework” applicable to each of his 

claims. Id. at 338. Although he need not demonstrate his appeal will 

succeed to be entitled to a COA, he must “prove something more than the 

absence of frivolity or the existence of mere good faith.” Id. (quotations 

omitted).

Having undertaken a review of Alas’s combined appellate brief and 

request for COA, the district court’s order, and the entire record before this 

court pursuant to the framework set out by the Supreme Court in Miller-El, 

we conclude Alas is not entitled to a COA. In so concluding, this court has 

nothing to add to the district court’s thorough order denying Alas’s § 2255 

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motion. Accordingly, Alas’s request for a COA is DENIED and this appeal 

is DISMISSED.

Entered for the Court

Michael R. Murphy

Circuit Judge

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